Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions
On October 28, 2020, the Department of Homeland Security (DHS) announced the transmission to the Federal Register of a notice of proposed rulemaking (NPRM) that would prioritize the selection of H-1B registrations based on corresponding wage levels. Such modification may significantly influence international students who are seeking to work in the United States after graduation.
Let’s first recap the current H-1B process briefly. An annual quota of 85,000 would be provided for H-1B cap-subject petitions. With 20,000 visas would be allocated to employees with a Master’s degree or above, the rest 65,000 visas would be issued to all other employees, including those with a Master’s degree or above. However, in the past several years, USCIS always receives petitions that exceed the quota of 85,000. As a result, not every cap-subject petition would be accepted. We call the selection process, H-1B lottery. The beneficiaries of H-1B cap-subject petitions used to win the lottery based on pure luck, now the rule may be changed.
When an H-1B case is selected, the employer needs to file a petition, by submitting a certified LCA and other supporting documents. The LCA determines the employee’s wage level, which can be divided into four categories, Level I, Level II, Level III, and Level IV. The DHS now proposes to modify the selection process based on wage level. Under the new rule, USCIS would select cap-subject petitions on the basis of the highest wage level, beginning with wage level IV and proceeding in descending order with wage level III, II, and I. Hence, the petitions with wage level IV and III would have more chances to be selected, could be 100%, while petitions with wage level I may never be selected.
However, based on H-1B data for 2019, most H-1B cap-subject petitions use wage level I or II. The offered salaries are not unreasonable, as most H-1B cap-subject petitions are filed on behalf of newly graduated international students who do not have sufficient work experience. We refer you to the following chart for more information regarding the selected petitions and their wage levels. As shown below, about 86.33% of the H-1B cap-subject petitions are filed using wage level I or II.
Further, we refer you to another chart, summarizing the estimated number of selected H-1B cap-subject petitions based on wage level.
Unfortunately ,according to the chart above, petitions with wage level I may have no chance of selection, and the possibility for those with wage level II may remain the same. Once the new rule is adopted, the employment market could be changed significantly for international students and small businesses which are unable to pay employees a high salary.
DHS will open a public comment period once the NPRM is published in the Federal Register. Interested parties will have 30 days to submit comments relevant to the proposed rule and 60 days to submit comments relevant to the proposed information collection. DHS will review all properly submitted comments, consider them carefully, and draft responses before issuing a final rule.
You may submit comments on the entirety of this proposed rule package, identified by DHS Docket No. USCIS-2020–0019, through the Federal eRulemaking Portal: http://www.regulations.gov. If you cannot submit your comment by using the portal, you may also reach Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at (202) 658–9621 for alternate instructions.
Our legal group would submit comments on behalf of any interested parties if required. Please feel free to reach me at: nicolazjy@gmail.com if you would like to make a comment on the proposed rule or have any questions regarding this article. Thank you ^^
